Emerging Voices: Does International Law Forbid Complicity in the Death Penalty?

by Bharat Malkani

[Bharat Malkani is a lecturer at Birmingham Law School, University of Birmingham, where he also runs the Birmingham Law School Pro Bono Group. You can also follow him on Twitter @bharatmalkani]

Recently, Ali Babitu Kololo was sentenced to death by a Kenyan court for his role in the murder of David Tebbutt, and the kidnapping of David’s wife, Judith, in September 2011. David and Judith were British holidaymakers in Kenya at the time of their ordeal, and British police were heavily involved in the investigation into these crimes. Officers from the Met’s Counter Terrorism Command (SO15) travelled to Kenya and played a major role in securing the arrest and conviction of Kololo. The officers provided forensic expertise, assistance with preparing the prosecution’s case, and also provided support to the victims’ family. Commander Richard Walton, the Head of the Met’s Counter Terrorism Command, said: “The investigation team, led by Detective Superintendent Neil Hibberd, have… shown great skill and tenacity in assisting this Kenyan investigation.”

It is only right that British authorities should help to bring the killers and kidnappers of British citizens to justice, and Kololo should be punished severely for the crimes he committed. But it is questionable whether the British authorities should contribute to the imposition of the death penalty. The UK has long rejected capital punishment for even the most serious of crimes, and the UK currently plays a leading role in promoting abolition of the death penalty in other countries. At the very least, it is starkly hypocritical for the UK to condemn other countries for using the death penalty on the one hand, while on the other hand actually assisting those countries like Kenya impose the death penalty.

Moreover, though, it might actually be illegal for British authorities to be complicit in the death penalty. It is arguable that, under international law, a norm is emerging that prohibits states that have abolished the death penalty from assisting its use elsewhere, comparable to the prohibition on complicity in torture and the prohibition on complicity in other internationally wrongful acts (Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts) .

The starting point for this claim can be found in extradition law. Both the European Court of Human Rights and the United Nations have made it clear that abolitionist states are forbidden from extraditing individuals to states where there is a real risk that they will face the death penalty. The principle behind this prohibition is simple: to do otherwise would be tantamount to aiding and assisting a practice that is forbidden.

Wider obligations to refrain from being complicit in the death penalty can be extrapolated from this principle. Extradition, remember, is just one form of mutual legal assistance, and it is odd that extradition to face the death penalty is prohibited, but providing police support to arrest, convict and sentence a person to death is not prohibited.

There are other ways in which abolitionist states can contribute to the imposition of the death penalty. Some states provide assistance to countries that struggle with drug-trafficking. The UN Office on Drugs and Crime (UNODC) – which is funded in part by abolitionist countries – regularly provides resources and intelligence to the likes of Pakistan and Iran to help with their counter-narcotics efforts, but these countries are notorious for imposing the death penalty for drug-trafficking offences, contrary to international law. Harm Reduction International has issued a report that explains in detail how resources and assistance from abolitionist countries have led to the executions of drug-traffickers. The Observer newspaper has also reported on the link between British funding and the execution of drug traffickers.

The UN routinely calls for the abolition of the death penalty, and the UNODC has actually recognised its potential complicity in the use of the death penalty. In 2012, it issued a position paper that explicitly states:

‘If . . . a country actively continues to apply the death penalty for drug offences, UNODC places itself in a very vulnerable position vis-à-vis its responsibility to respect human rights if it maintains support to law enforcement units, prosecutors or courts within the criminal justice system.’ (pg. 10)

The legal charity Reprieve, which is based in the UK, has also highlighted how some abolitionist states have enabled executions by allowing pharmaceutical companies to provide the drugs that are needed for lethal injections, particularly in the United States. Reprieve’s campaigning on this point has led to many of these companies ceasing the provision of such drugs, and the UK Government and the European Commission have put in place stricter controls to ensure that goods exported to retentionist states are not used for the purposes of capital punishment. State practice, in this area at least, therefore also indicates a move towards refraining from being complicit in the death penalty elsewhere.

Kenya has not carried out an execution since 1987, and it has been reported that the UK Foreign Office is confident that the death penalty won’t actually be carried out in this case. However, there are still others to be arrested in connection with this offence, and it would surely be better for the UK to only provide assistance on the proviso that no death sentences are handed down as a result of their investigations. Although no court has identified an obligation to withhold assistance without such assurances, the actions of governments and inter-governmental organisations like the UNODC suggest that an obligation is emerging in international law.

6 Responses

Ah, another CIL “norm” in opposition of common actual practice and without the consent of the countries’ involved. I’m not sure that common violation of countries’ actual written extradition treaties really gives rise to a norm, either; that’d certainly set an unfortunate precedent.

8.15.2013
at 12:17 pm EST M. Gross

If I understand correctly, the argument is not about new CIL norms but about existing treaty-based obligations of a limited number of (mostly European) states who have agreed to abolish the death penalty in all circumstances. For those states, the prohibition of the death penalty implies a non-refoulement obligation, as is the case with the prohibition of torture.

Similar to what has been discussed in relation to torture, it seems plausible that the prohibition of the death penalty could/should also entail a broader obligation not to be complicit, i.e. not to contribute to the imposition of the death penalty by other states. However, I think this raises at least two big questions. First, would it apply to any form of assistance that contributes to the death penalty or only assistance that creates/contributes to a sufficient risk that the person concerned will be subjected to the death penalty?

The second question is to what extent that obligation would apply extraterritorially. The fact that extradition is just a form of mutual legal assistance does not provide an answer, because the person to be extradited is clearly within the jurisdiction of the state concerned, whereas this may not be the case when the person is in another state. I doubt that the provision of information and evidence or many other types of mutual legal assistance would generate sufficient control or authority over a person at risk of being subjected to the death penalty to trigger jurisdiction and the applicability of the obligation.

Finally, I’m glad that UNODC’s human rights policy is mentioned. As a UN entity, UNODC advocates the abolition of the death penalty in line with relevant General Assembly resolutions calling for a moratorium on executions. The UNODC position paper identifies different responses, including the suspension or withdrawal of support, depending on the risk that its activities aid or assist human rights violations.

In terms of its legal significance, I’m not sure whether the UNODC paper can be read as a recognition of international responsibility for complicity in the use of the death penalty. Is the use of the death penalty for drug-related offences an internationally wrongful act that can be aided or assisted by the UN? Is the UN bound by more than the call for a moratorium, namely an obligation to abolish the death penalty in all circumstances and thus by a (possible) implicit obligation not to be complicit? In any case, the paper will hopefully help UN staff in identifying the risk of assisting human rights violations and in taking the necessary measures to avoid complicity.

Thanks both for your comments. The argument is broadly that abolitionist states appear to be increasingly concerned with complicity with the death penalty.
I expand on these points in the longer ICLQ article – so only assistance that creates a significant risk is an issue, and I agree that the jurisdiction issue is a problem. My arguments are by no means fully worked out – these are just recent developments that I think warrant attention. So your comments are both much appreciated – I’ll take these on board as I develop these ideas further

8.19.2013
at 12:04 pm EST Bharat Malkani

Interestingly enough, the ICC is based in a member state of the abolitionist Council of Europe. But a decision on the non-admissibility of a case in e.g. the Libya situation (leaving the trial to the national justice system) would be tantamount to contributing to the imposition of the death penalty.

8.20.2013
at 8:21 am EST Thomas Verfuss

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